Bill would close sex-crime sentencing loophole

Sexual predators who attack the severely disabled can escape harsher penalties because a loophole in the law prevents judges from handing down longer jail sentences simply because the victim cannot prove force was used.

“All victims deserve equal protection under the law,” said the Republican, arguing that his bill “will allow for more equitable punishment for those who commit heinous crimes against victims who do not have the ability to protect themselves.”

Under existing law, sentencing enhancements related to sex crimes require proof that the victim resisted, either verbally or physically. But often severely developmentally disabled victims are incapable of giving legal consent.

“If you can’t communicate a lack of consent, because you are physically or mentally unable to, how can that be a requirement under the law?” Maienschein said. “They have been raped. They are the victims and they have been victimized again by the system.”

The legislation has drawn the interest at Seeds Educational Services, a San Diego nonprofit that offers programs for those who have intellectual disabilities.

“Sexual assault of people with developmental disabilities is a problem nationwide,” said Executive Director Stacy Everson. For too long, she said, “it has been a crime not spoken of” because victims are not believed and even when there are convictions the punishment does not match the crime.

Everson and two of the participants in the program have submitted “powerful and moving” letters to lawmakers urging passage of the measure, Maienschein said.

Heather Clemons opened up about an incident when she was accosted after school. But her parents, the principal and authorities were not convinced she was telling the truth.

“Please believe people with disabilities no matter what,” Clemons wrote.

In her letter, Tawnya Ormsbee, detailed abuse she endured starting at the age of 15, branding the perpetrators “scum.”

“Rape should not be a forget-about, don’t-care. Rape is serious,” she pleaded. “Please do not put criminals in jail for only two years. Get real. This is a crime. They should be put away for 20 to life.”

With no public opposition emerging so far, Maienschein’s Assembly Bill 1335 has sailed through the Assembly unanimously. It may face a challenge in the Senate Public Safety Committee where members have been reluctant to approve bills that could increase prison costs. It may also get caught up in the politics of court orders to reduce prison overcrowding.

The California Department of Corrections reports that since 2011 and 2012 about 50 new prisoners were admitted who may have qualified for the penalty enhancements if the law had been place at the time of the crime. A one-year enhancement for one rapist would add $60,000 annually to prison costs, the corrections department told the committee.

Maienschein said dollars should not be a factor. “This is about equity and protecting the public,” he said. “The cost-benefit analysis clearly comes out on the side of a benefit to society.”

Maienschein said he introduced the bill in response to a recent case that exposed the discrepancy in how the law treats victims depending on their abilities. A Sacramento man who raped his stepdaughter, who has cerebral palsy and cannot speak or walk, was given an 11-year sentence. If the girl, then 14, had been able to prove force was required, the judge said he could have tacked on more time.

The measure also would add sexual attacks on the severely disabled to a list of crimes that qualify under the state’s “one-strike” law. Such one-strike offenses can carry mandatory sentences of 15 years to life when there are aggravating circumstances, such as kidnapping or use of a deadly weapon.